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TOOLS PRINT E-MAIL JULY 10, 2008, ASYLUM DENIED BRIDGET CONLEY-ZILKIC: With me today is Philip Schrag is a Professor of Law at Georgetown University. And David, you have to help me pronounce. DAVID NGARURI KENNEY: “Ngaruri” BRIDGET CONLEY-ZILKIC: Ngaruri Kenny, who is a victim’s advocate at the state’s attorney office in Montgomery County Maryland and a graduate of Catholic University Law School. He is also, as we will be discussing today, a refugee from Kenya who made his way to the United States and that’s the story we’ll introduce now. But I wanted to start, Philip, if you could help our audience understand what precisely is a refugee? PHILIP SCHRAG: Under the refugee convention and under American Law, a refugee is a person who has left his own country and is afraid to go back because of a well-founded fear of persecution on account of race, religion, nationality, political opinion or membership in a particular social group. The refugee convention was passed in response to the Holocaust. It was first agreed to by many countries of the world in 1951 and then a protocol extending it was negotiated in 1967. The United States finally signed on at that point. And in 1980, another 13 years having gone by, the United States enacted a refugee law of its own echoing the convention under which a person who flees to the United States, flees from persecution can attain asylum in America. BRIDGET CONLEY-ZILKIC: In the book, you also start off with another story, and the book, I should step back for a moment is called “Asylum Denied: A Refugee’s Struggle for Safety in America” and you are the co-authors. You begin with another example from the Holocaust and, I think, it’s one that offers a pretty stark example of why a refugee protection system was necessary. You introduced the story of the St. Louis. PHILIP SCHRAG: Yes, it’s a story that I learned about for the first time, I’m ashamed to say, when I visited the Holocaust Museum shortly after it opened in 1993. The- I thought I knew a lot about the Holocaust, but I didn’t know much about America’s reaction to the Holocaust. When I saw the exhibit on the fourth floor of the museum about the ship, the St. Louis, it changed my life and I stopped everything that I was doing teaching a law school clinic in disability law, and converted my clinic into a refugee clinic, so that I and my students could help to rescue today’s victims of persecution. The people on the St. Louis were one of the last groups of people who were allowed out of Nazi Germany in 1939. They got on a cruise ship with Hitler’s okay and sailed to Cuba where they thought they could land safely and may have been given visas to land in Cuba. But their visas were revoked when they got to Cuba because the immigration commissioner had not shared his bribes with the president of Cuba. They were forced out of Cuba, not allowed to land. The captain of the ship who wanted to land his passengers sailed off the shores of Miami and the refugees could see the lights of Miami from the ship, but President Roosevelt wouldn’t let the ship land either and the refugees had to return to Europe where about half of them were killed in the Holocaust. BRIDGET CONLEY-ZILKIC: The Museum had a research project where it tracked down the fate of every single person that was on the St. Louis and we have more information about that on our Web site. I will shift now, though, to David, so we can learn more about what happened to you and in your quest for asylum, to be granted safe haven as a refugee. But first let’s start in Kenya where you grew up. Can you tell our audience what you were doing that made you come under the abuse of your government? DAVID NGARURI KENNEY: Well, I grew up in Kenya in a very small farming village, a tea farming village back in 1982. When my dad died I became a farmer. After I became a farmer…we were not allowed to grow any other crop on our farms. We were not allowed to sell the tea to anyone else except the government agency. Most of the tea that we grew in the crops, we sold it to the agency. We were only paid a minimum that could not even help us to sustain ourselves. So I organized a peaceful protest against the government, and as a result I was arrested. After the arrest, I was tortured and put in a basement cell where I deprived of water. They put me in a cell where the water would rise and fall. Constantly I was afraid of getting drowned. And after I was released, I was placed under house arrest and totally isolated from the public. Those who had associated with me were also targeted and harassed by the local police. When I came under house arrest, since I could not associate with anyone else, there was Peace Corps volunteers who had been assigned in my district, and one of them had- decided to live in my village. In the course of my isolation we became friends with this Peace Corps volunteer. Through this American, I met other Americans and together we drafted this idea of me getting out of the country through a basketball scholarship even though I had never seen a basketball in my life. When I came into the United States I ultimately went to the University of San Francisco and graduated with a degree. Then after I graduated I realized that I can’t go back to my country because President Moi was still the president of Kenya at the time. And that’s when I decided to apply to asylum. And Phil and I met at that time and we started the asylum process. BRIDGET CONLEY-ZILKIC: I would just say briefly, you know, I said the word “torture,” and people feel like they know what that means, you explained in one or two sentences what you went through. One of the things that I think is very powerful in this book that you’ve written together is also to try to bring a little more complexity to how survivors of torture continue to suffer the effects. The challenges it presents in so many ways beyond whatever neat and tidy words we might be able to come up with for what you went through. Philip, can you pick up there then? David has brought us through his political activism in Kenya. He came to school, the story- the intersection of your life with basketball or the idea basketball is actually one of the almost comical threads through the book. But then the decision to apply for asylum, what were the challenges that he faced? PHILIP SCHRAG: Well, the first challenge was that he applied for asylum without having a lawyer. Nobody should do that. This is a complex legal process. The chance of winning asylum without a competent lawyer at your side is very, very poor. He went through the first stage of the process and interviewed with an asylum officer unrepresented and he got a few facts wrong. He had actually addressed a crowd during his political protest. He had addressed a crowd of 30,000 people and he said that it was about 100,000 people to the asylum officer. The asylum officer figured if it had been 100,000 people she would have some way of knowing about it. She thought he was lying and denied asylum. Then he came to Georgetown law school thinking that since he was now facing a deportation hearing in which he would either be deported or he could try again to seek asylum that he better get a legal degree so that he could represent himself. A dean at Georgetown Law School said, you don’t need a law degree, you need a lawyer. Fortunately, we have clinic here at Georgetown Law School that represents asylum seekers for free in immigration court. I’m the director of that clinic. He and I met at that time. My students represented him in a hearing in immigration court. They prepared for months. They worked very hard. They did everything right and still they lost. The reason they lost, the reason Mr. Kenney was ordered deported back to Kenya was that after his sophomore year of college, he had received a letter from his family in Kenya saying that his little brother, a brother he had brought up as his own son after his father died, had been arrested and was being tortured in a prison in Kenya. He immediately dropped everything and flew to Kenya, hired a lawyer, got his brother out of jail even under the eyes of the police in Kenya who were watching him at the time. They were watching Mr. Kenney at the time because he had returned to Kenya. He immediately flew back to the United States to resume his studies at the University of San Francisco. Well, because of this quick trip to rescue his brother, the judge, the immigration judge said he no longer qualified for asylum. It proved that he wasn’t afraid to go back and he had lost his refugee status. I guess she was trying to prove the adage we sometimes read on bumper stickers that says, “No good deed goes unpunished.” He might have won on appeal had it not been for the fact that 9/11 occurred just then. John Ashcroft, then the Attorney General, in response to 9/11 made three changes in the Board of Immigration Appeals, the appellate body for asylum cases. He fired summarily five Clinton administration appointed members. Not the people with the least seniority on the Board of Immigration appeals, but of the 17 members the five who had had the most experience representing immigrants or teaching law so that the board became a much more conservative body. He told the board to stop writing opinions. It could affirm denials of asylum without writing opinions. But to reverse the denial of asylum, they would have to write an opinion. It became much easier for the board to affirm a denial of asylum and order somebody deported than to do the opposite. Finally, he told the board to stop deciding these cases in panels of three with some deliberation but a single member of the Board of Immigration Appeals could affirm a denial of asylum. The board in one month or a few months the board’s rate of reversing denials of asylum fell from 37 percent to 13 percent. In that gap fell Mr. Kenney, whose deportation order was affirmed. Eventually, he had to return to Kenya where he was once again – not to Kenya but to Tanzania because he was afraid to go back to Kenya. In Tanzania, the Kenyan government sent agents to surveil him and watch him and he was in danger in Tanzania. In fact, in Tanzania he was nearly murdered once again. As you know, because he’s talking to you here, he’s back in the United States safe, at last. How he got there is a long story that, of course, is told in the book “Asylum Denied”. BRIDGET CONLEY-ZILKIC: Yes, and told very eloquently with each new hurdle coming up before him producing an incredible frustration for readers trying to understand the story. David, can you talk about what it was like to engage with this asylum or immigration system from your perspective? DAVID NGARURI KENNEY: Well, from my perspective it was more that, you know, I come from back in my country where you take anything to the judge, the biggest bidder pays the judge and gets the judgment. Going to the legal process here in America it never occurred to me that American legal system- any legal system in America could be based on the whims of the judge or the individual discretions or decisions. It became very confusing for me especially when working with Phil. Phil once, again and again, would deliver these bad news to me especially telling me, you know, you qualify as a refugee. The law is very supportive of your position, but we lost because you did something good. It was very confusing, particularly when I went back to Tanzania and we were trying to get one waiver after waiver. Because after deported I was technically barred from coming back here for 10 years. And I was already married to an American. My wife is out there in the America, so we had to apply for a waiver. While I was there, I met with the consular officer who initially becomes very helpful and gives us all of the sweet talk that makes us convinced that she’s willing to help us. But then she goes through this turn that, you know, having lived in Africa was very indicative of that. We had exposed a corruption racket, a racket that one of the local embassy employees were involved with. She became very angry at us for that. That almost convinced me that, you know, having lived in Africa, that this person must be involved with this racket, because that’s the last thing you would expect to have an American official respond to. It was very confusing to me, but then at the same time, I had a very strong belief within the American system that it does work. The only way you can make it work is when you know what is the right thing to do and you stand by it. It’s by doing that that you make the system work. I think this book is a way of letting the public and letting everybody know how arbitrary the American legal system, particularly the refugee and the immigration legal system, how arbitrary it is. And how much of changes there needs to be made within this system. BRIDGET CONLEY-ZILKIC: And so just briefly for people who don’t quite understand the difference between the process of getting asylum in the U.S., as you said that became much more difficult after 9/11. But it is actually a much more rigorous process than regular immigration processes. DAVID NGARURI KENNEY: I can’t imagine- I believe there was one senator, I think, who said the refugee law is going to be used by terrorists to come to America. I can’t imagine any terrorist who would be advised to use the asylum process to come to America, because the process itself is so rigorous that it’s equivalent to having your whole life dissected on a table and having like a surgeon with a microscope looking into your life, particular with the aspect of your identity before you even qualify for asylum. So if a terrorist is going to try to come to America, that’s the last way they’re going to use. Anybody who would think that they should put restrictions on the asylum process in order to prevent terrorists coming in here, I don’t think that should even be a consideration. Because it’s a very rigorous process. And it takes a lot of time and it takes a lot of- the burden is very high in order to qualify to prove your case. PHILIP SCHRAG: To win asylum you have to be fingerprinted, prove your identity through documents, and prove that you have a well-founded fear of persecution on one of those grounds I mentioned. That typically takes hundreds of pages of documentary evidence. That’s why an asylum applicant is well-advised to have a lawyer because the lawyer will both compile that documentary evidence and help prepare you as an applicant to testify orally in a way that’s believable and consistent with the documents. When a person has gone through trauma and torture as a result of persecution it’s very difficult for them to relive and recall all of their experiences accurately. It takes weeks of work often with a mental health professional as well as a lawyer in order to be prepared to testify in an American court. DAVID NGARURI KENNEY: Yes, let me add to Phil’s comment is that you’ve got to keep in mind that most of the people who, especially those who come here seeking asylum are not people who wake up one morning and they say, I don’t like living in my country, I’m going to go and look for a good life in America. Like in my case, you know, America wasn’t even a country that I ever considered that it was there. It was a place that came about because my fast opportunity was to be safe, was to seek safety. Now, most of asylum seekers are- fall into the same category. They are looking for safety. They are running away from their lives. When you’re running away from your life you don’t have the time to plan, prepare and gather the information and the evidence that you need to support an asylum case, especially given the amount of documents and the amount of evidence that they system requires in order to be able to prove that you have a well-founded fear. Imagine someone who is running away from his life, and you have someone behind you with a gun shooting at you. Then the person stops by and says hey, before you shoot me, wait a minute, can you please give me a receipt to show me you’re shooting me so that if I happen to get to America I can be able – I might apply for asylum and those guys might want to know that you are really trying to shoot me. That scenario is never going to happen because you are running for your life. That’s why a lawyer is very important because then when you get here, after you get into safety life becomes very, very convoluted. I remember when I came here and I woke up one morning and I realized that I don’t have to worry about someone trying to find out where I am or trying to shoot me, that it became so weird that I almost did not want to talk to anybody about what I had gone through because I couldn’t imagine anybody being able to understand what I’m talking about. BRIDGET CONLEY-ZILKIC: Just as a final question then, can you tell us where you are today and where you’re working? DAVID NGARURI KENNEY: Well, today, my wife and I, we live in Montgomery County. We live in Germantown. My son is two-years and eight-months. I work at Montgomery County State Attorney’s Office. I’m hoping to take the BAR in a month, hopefully I’ll pass and be a lawyer. I will become a lawyer and I hope to be continued working here as a prosecutor and continue working as a victim’s advocate. BRIDGET CONLEY-ZILKIC: And, I think, the fact that your story ends with you as a victim’s advocate says quite a bit about the generosity of spirit that this book documents incredibly well and what an asset you are to have in our community, in our country now. DAVID NGARURI KENNEY: Well, thank you. BRIDGET CONLEY-ZILKIC: Thank you both for speaking with me. DAVID NGARURI KENNEY: Thank you very much. PHILIP SCHRAG: Thank you. www.asylumdenied.com NARRATOR: You have been listening to Voices on Genocide Prevention, from United States Holocaust Memorial Museum. To learn more about preventing genocide, join us online at www.ushmm.org/conscience. There you'll also find the Voices on Genocide Prevention weblog.